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THE BROOKINGS INSTITUTION After Snowden—Surveillance, Protecting THE BROOKINGS INSTITUTION After Snowden—surveillance, protecting privacy, and reforming the NSA September 22, 2017 CONTRIBUTORS: HOST: FRED DEWS BILL FINAN TIMOTHY EDGAR Author, “Beyond Snowden: Privacy, Mass Surveillance, and the Struggle to Reform the NSA” ROBIN LEWIS Associate Fellow, Governance Studies, Center for Technology Innovation DAVID WESSEL Director, the Hutchins Center on Fiscal and Monetary Policy Senior Fellow, Economic Studies (MUSIC) DEWS: Welcome to the Brookings Cafeteria, a podcast about ideas and the experts who have them. I'm Fred Dews. In 2013, Edward Snowden revealed thousands of classified documents from the National Security Agency to U.S. journalists, revealing that Agency's domestic surveillance and data collection activities. The news coverage and outcry raised significant civil liberties concerns and renewed interest in the rules that govern these activities. On today's show, a discussion about Snowden and mass surveillance with Tim Edgar, a former ACLU lawyer, former deputy for civil liberties and the Office of the Director of National Intelligence, and former National Security Council adviser on cyber security policy. Edgar is now a senior fellow at the Watson Institute for International and Public Affairs. He is the author of a new Brookings Institution Press book "Beyond Snowden: Privacy, mass surveillance, and the struggle to reform the NSA." After the interview, you'll hear another installment of Wessell's economic update in which David Wessel looks at one of Donald Trump's really big decisions whether to keep Janet Yellen on as Fed chair or who might replace her. And then Robin Lewis talks about her research on financial and digital inclusion around the world. It's a big show, so let's get started. Here's my colleague Bill Finan, director of the Brookings Institution Press, and his conversation with Tim Edgar, author of "Beyond Snowden." FINAN: Thanks Fred for that introduction, and Tim, welcome. EDGAR: Thanks, It's great to be here. FINAN: Your new book is called "Beyond Snowden," and it's also a story of your journey through the national security apparatus so a lot of it is about you, can you tell us what drove you to write this book? EDGAR: I really wanted to shed some light on these issues of mass surveillance and privacy. We've had a huge global debate about them ever since 2013 when Snowden revealed some of the deepest secrets of the NSA, how they collect up huge amounts of data and communications, and we've also learned a lot about the rules that govern them. And this is really what I've been doing since 2001, since I started as a lawyer at the ACLU. And so my journey was pretty unique. I went from the ACLU as a lawyer working on surveillance and privacy issues after 9/11 in their Washington office to go inside what's now called the deep state our growing surveillance apparatus. And I did that in the late part of the Bush administration when we were first starting to learn about some of the changes that had been made to our surveillance programs. FINAN: And that's the George W. Bush administration. EDGAR: That's right, there was a reorganization of the intelligence community recommended by the 9/11 Commission and that included for the first time a privacy office. There was an understanding that with the threat of terrorism and the possibility of collecting much more information about Americans that we needed to pay more attention to privacy issues. When I went inside I really had no idea the extent to which our laws were out of date–that they didn't really protect our privacy. They were designed in the 1970s based on ideas and distinctions that really don't matter a whole lot today or matter a lot less than they used to. FINAN: And your journey continued through the Obama administration? EDGAR: That's right, so when Obama came into office I felt like "we're going to have a fresh start on issues of surveillance." I mean, George W. Bush we had a warrantless wiretapping program with the NSA, a lot of talk about. FINAN: That's the National Security Agency. EDGAR: That's right, that's the agency that scoops up so much of the world's communications. And with Obama he had promised to review those surveillance programs on the campaign trail, but if you looked closely at what he was saying you'd see the what his main concern was was not the surveillance itself and the privacy questions there, but checks and balances wanting to bring in Congress and the courts to serve their proper role in overseeing surveillance. And what he discovered when he arrived in 2009 when I went to the White House is that actually a lot of that had already happened that we in the Bush administration had put many of these programs, that started as deep secret programs pushed by Dick Cheney, that we had taken those programs and put them under the authority of the Foreign Intelligence Surveillance Court which is this secret court that sits in Washington and reviews intelligence surveillance. So much of the things that Obama criticized you know we're no longer really very relevant and then he kind of sat around and didn't do much to reform surveillance for the next five years. FINAN: Let's take a moment just sort of pull back and use the term "mass surveillance" and you mentioned the National Security Agency. Can you explain exactly what you mean by mass surveillance? EDGAR: So, I think it's important to understand when I say mass surveillance I'm talking about the scale of surveillance programs. There is a very specific term that the NSA uses called "bulk collection," and that's a technical term, it means that we're collecting all of the communications or data in a database or going across a wire without discriminating at all. It's literally indiscriminate surveillance. That's bulk collection, we collect everything. Mass surveillance to me is a broader, less technical term that captures the fear and the reality that so much data is being sucked up in large scale surveillance programs that's run by the U.S. government. That's what Snowden really was revealing in 2013. And so some of those programs might be targeted from the point of view of the NSA analyst who has to come up with a target and put it into a system that retrieves those communications. But from the point of view of society as a whole, if we're talking about hundreds of thousands of communications like we are with this new law that Congress is reviewing this fall, than I suggest that just on a matter of scale alone that qualifies as mass surveillance. FINAN: And we are talking about this in reference to something else a moment ago, but what is the legal basis for this electronic panopticon? EDGAR: Well you've got different laws that depend on really where you acquire the data, who you're targeting, what kind of data it is, and many of these are very counter-intuitive and arbitrary. One of things I wanted to do in the book is to help ordinary readers understand why these matters so much. And the reason they matter so much is because they matter to the agencies, they matter to the lawyers, but they may not make a whole lot of sense. And so that's kind of a difficult thing to understand sometimes, and I think it's absolutely crucial to understand the issue. I'll give you an example of that. If I'm collecting data inside the United States and its content of communications I'm probably going to have to go get a court order to do that under federal law. I'm collecting the same kind of data, but I'm doing it with a partner overseas, even though there may be just as many Americans in those communications or just as few, I'm not going to have to get a court order. I'm to be able to do that under an executive order that just is the president's own authority. That doesn't make a whole lot of sense to people but that is what the law says. Another example you know when you're talking about the content of communications that has some pretty significant legal protections at least when you're talking about domestic content. When you’re talking about meta-data, that's the phone numbers that you dial, or the e-mail addresses that are at the top of your e-mail, that has much less protection. And when you put all this together, and I talk about this in the book, I talk about how this really does a terrible job of protecting our privacy in the 21st century. It may have made some kind of sense in the analog era, back when we had rotary telephones and no Internet, but today so much of our lives are online our lives, are often much more global. We meet more people from foreign countries, we travel more often, and we use the Internet, and we can you know have people from all over the world that we're corresponding with, and yet we still treat that as some sort of exotic international communication that doesn't get the same kind of protection that our domestic communications get. FINAN: Your job in government after you left the ACLU was to oversee, in a sense, civil liberties aspects of mass surveillance—I think I have that right although it sounds a little bit oxymoronic—.
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